KABIR CHOWDHRY V SAPNA BHAVNANI & ORS

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Atul

REPORTABLE

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

IN ITS COMMERCIAL DIVISION

INTERIM APPLICATION (L) NO. 5420 OF 2020

IN

COMMERCIAL IP SUIT (L) NO. 5415 OF 2020

Kabir Singh Chowdhry ,

an Indian habitant, and having a place of

resident at House No. 9, Sector 4,

Chandigarh 160 001

…Plaintiff

(Applicant)

~ versus ~

1. Sapna Moti Bhavnani ,

an Indian Habitant, and a resident of

Flat No. 9, Kashi Kunj, Waterfield

Road, Bandra (West), Mumbai 400 050

AND also having her place of work at

Maaz Centre, Shop No. 3, Dr

Ambedkar Road, Bandra (West),

Mumbai 400 050

2. Amazon Com Services LLC ,

a company incorporated under the laws

of USA and having its office at 2021,

7th Avenue, Seattle, WA 98121, United

States of America, through its Legal

Department

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3. Amazon Digital Services

LLC, a company incorporated under

the laws of USA and having its office at

2021, 7th Avenue, Seattle, WA 98121,

United States of America, through its

Legal Department

4. Priyadarshi Rishiraj,

having his place of residence and

business at 5048 Walnut Street

Philadelphia, PA 19139, United States

of America

5. Anupama Bose,

C/o Movie Saints, 5048 Walnut Street

Philadelphia, PA 19139, United States

of America

6. Google LLC,

a company incorporated under the laws

of USA and having its office at 1600,

Amphitheater Parkway, Mountain

View, CA 94043, USA

7. Indiepix Films, Inc.,

a company incorporated under the laws

of USA and having its office at 3101,

Vernon Blvd, 1st Floor Astoria,

NY11106 United States …Defendants

APPEARANCES

FOR THE PLAINTIFF Mr Rahul Ajatshatru, with Ankita Singh,

Krishma Shah, & Zalak Mody, i/b

A&P Partners.

FOR DEFENDANT NO . 1 Mr Rohaan Cama, with Sunil Zalmi, &

Ekta Jhaveri, i/b MZD Legal

Consultancy.

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FOR DEFENDANT NO . 6 Mr Shailesh Poria, with Swapnil Gupta, &

C Keswani, i/b Economic Laws

Practice.

CORAM : G.S.Patel, J.

DATED : 10th & 11th February 2021.

ORAL JUDGMENT:

1. This order will finally dispose of, by consent, the Plaintiff’s

Interim Application (L) No. 5420 of 2020. The Interim Application

is to be finally numbered in the course of this week.

2. I begin with a very brief look at the litigation history.

3. The suit seeks an order and decree that the Plaintiff

(“Chowdhry”) be credited as the co-producer and joint owner of the

copyright in a documentary film titled ‘Sindhustan’, made some time

in 2019 along with the 1st Defendant (“Bhavnani”). Chowdhry and

Bhavnani have had something of a personal history — not ordinarily

a matter that I would have dwelt upon, but for the fact that is so

entangled with the legal entitlements claimed. Chowdhry brought

suit for this and other reliefs on 20th May 2020. The second prayer

is for a perpetual injunction. Then there is a prayer for a restraint

without giving Chowdhry the credit he claims, another prayer for

accounts, and then the usual prayer for interim relief in these terms.

4. Chowdhry first moved the matter on 22nd May 2020 before

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while. The Court then felt that a reply and a compilation would be

necessary. The Court issued directions. The matter was stood over to

29th May 2020. It came up on that day. Mr Ajatshatru for Chowdhry

pressed for relief. Mr Cama for Bhavnani pointed out that the film

had already been released on the internet on 12th May 2020. By that

time, it was unreasonably beyond Court hours and the matter was

adjourned to 2nd June 2020. It then came up before AK Menon J on

2nd June 2020. It was called at even a more unreasonable hour that

day, around 6:00 pm, and the Court felt that it would not be possible

to complete the hearing. Both sides agreed to file written submissions

no longer than 10 pages (about which I will have to say something

later). There were specific directions in this regard, and the parties

were set at liberty to apply after these written submissions were filed.

On 16th June 2020, the matter was adjourned to 23rd June 2020. On

that date, it seems that although the written submissions were in fact

filed (presumably in soft copy since all hearings were online at that

time), nobody pointed this out to the Court, and today both counsel

agreed that this was either not communicated or perhaps for some

technical reason could not be communicated. Very possibly, there

was an oversight. In any case, the learned Single Judge (BP

Colabawalla J) said that having gone through the papers, he found no

cause for urgency and declined ad-interim relief.

5. Chowdhry went up in appeal. The appellate order of 9th July

2020 remands the matter on this limited ground, viz., that the Court

of first instance had not seen the written submissions and that the

attention of the Court had not been drawn to them. Chowdhry came

back to the learned Single Judge on 17th August 2020. This was now

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the appellate order allowed the Interim Application to be taken up

finally instead of only for ad-interim relief. Gupte J felt that the

Interim Application itself should be disposed of, and since, at that

time, only urgent ad-interim applications were being heard online,

stood the Interim Application itself over to 7th September 2020 for

final disposal. It came up before KR Shriram J on 11th September

2020. Both sides seem to have taken time to explore the possibility of

a settlement. That has not happened. The matter was adjourned

thereafter on one or two occasions until, finally, on 25th September

2020, both sides told the Court that talks had not come to fruition. It

was suggested that the Interim Application be listed for final hearing

since all filings were complete, and until the next date, the parties

would again endeavour a settlement.

6. There is no settlement. The matter was then stood over to 16th

October 2020, 23rd October 2020, 2nd December 2020, 18th

December 2020 and 13th January 2021. It was listed before me on

that date, and I directed that this matter, along with another litigation

between the two parties, would be taken up on 8th February 2021 at

3.00 pm. By this time, hearings were in physical Court with a hybrid

option. I readily made this available to Mr Ajatshatru, who is in Delhi.

His entire presentation has been online, while Mr Cama for Bhavnani

has been present throughout in Court. Mr Ajatshatru has had no

difficulty in following Mr Cama’s submissions and vice-versa.

7. On 13th January 2021, I permitted further written submissions,

this time not only specifying the page length but the font size and

spacing. This seems to have been done in the other matter. In this

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the length, but perhaps the direction was unduly optimistic. The

physical versions of the online filings are almost unreadable in many

places. The print is faint. I have, therefore, had to use both physical

and digital copies. The result is considerable confusion of page

numbers. In addition, and to make matters even more interesting,

there are compilations said to be somewhat euphemistically ‘for

convenience’ — whose I cannot tell; certainly not mine. The written

submissions contain some very puzzling cross-references.

8. The two cases between the parties are listed together. But they

are entirely different. This case is about the film Sindhustan. The

other litigation, Commercial IP Suit (L) No. 7140 of 2020 (listed at

Serial No. 2 today) relates to another film Mehsampur. The causes of

action are entirely distinct. The claims are entirely different.

Bhavnani is the 6th defendant in that suit. The plaintiffs in the

Mehsampur suit are not only Chowdhry, but his firm Dark Matter

Pictures, and Chowdhry’s partner in Dark Matter Pictures, one

Akshay Singh. Obviously, the two Interim Applications would have to

be heard separately. I made this clear to both sides when I began

hearing the Sindhustan matter on 8th February 2021. I have heard

both sides on a day-to-day basis since then, i.e., on 8th, 9th and 10th

February 2021. Both sides have agreed that this will be a final

disposal.

9. I have already summarised the prayers in the suit. The prayers

in the Interim Application are somewhat different, and I believe it is

important to look at these because of the jurisprudential

consequences that follow. Prayers (a), (b) and (c) of the Interim

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“(a) Pending the disposal of the present suit pass interim

orders restraining the Defendants, jointly and severally, by

themselves of by through any other person from copying,

storing, communicating to the public or offering for sale or

hire the cinematograph film Sindhustan (2019) on any mode

or medium without express written permission of the

Plaintiff;

(b) Pending the disposal of the present pass interim

orders restraining the Defendants, jointly and severally, by

themselves of by through any other person form copying,

storing, communicating to the public or offering for sale or

hire the cinematograph film Sindhustan (2019) on any mode

or medium without giving due and proper credit of being co-

producer and co-author of the Suit Film at all places

including the film, its artwork, promotional material on all

platforms including the Internet;

(c) Pending the disposal of the present suit pass interim

orders restraining the Defendants, jointly and severally, to

render true and faithful accounts against the Defendants of

all amounts earned from the sale of any rights in the said film

and/or from the exploitation of film Sindhustan (2019) in

any manner whatsoever and further direct the Defendants to

deposit the same in this Court.”

10. It cannot be disputed that whatever the wording, prayer (b) of

the suit and prayers (a) and (b) of the Interim Application are not

ordinary restraints, but are in the nature of mandatory injunctions.

Prayer (a) of the Suit is only for a declaration. Now prayers (a) and (b)

of the Interim Application require a command that Bhavnani must

take Chowdhry’s permission before making any commercial use of

the film Sindhustan, and prayer (b) of the Interim Application asks for

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author of that film. These prayers in the Interim Application

correspond to prayers (b) and (c) of the plaint.

11. If I am right in my reading that prayers are in the nature of

mandatory injunctions, then certain consequences follow. Even if I

am not, the settled law is that the usual trinity of tests must be

satisfied by any claimant for interim relief: a strong prima facie case,

demonstration of balance of convenience; and establishing

irretrievable prejudice or injury. But if these prayers are, as I do

believe them to be, for a mandatory injunction, then the bar for a

Plaintiff seeking such relief is set even higher.

12. In Samir Bhojwani v Aurora Properties & Investments Samir

Bhojwani,

1

the Supreme Court considered precisely this — what must

a Court do when asked to make a mandatory order at an interlocutory

stage. First, there is no question of ‘moulding relief’. Where a

mandatory order or injunction sought, such a moulding can only be

done at the final hearing of the suit. Second, as a matter of settled law,

a mandatory order can be granted at the interlocutory stage only to

restore the parties to a status quo ante and not to establish a new order

of things; that is to say, a new factual scenario. The order cannot

create a factual situation at odds with the one that existed at — and

this is important — the date of institution of the suit. The Samir

Bhojwani Court traced this position in law to the celebrated case of

Dorab Cawasji Warden v Coomi Sorab Warden.

2

It then set out the

1 (2018) 17 SCC 202.

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guidelines that govern such cases culled from Warden. Paragraphs 16

and 17 of Warden v Warden say this:

“16. The relief of interlocutory mandatory injunctions are

thus granted generally to preserve or restore the status quo

of the last non-contested status which preceded the pending

controversy until the final hearing when full relief may be

granted or to compel the undoing of those acts that have been

illegally done or the restoration of that which was wrongfully

taken from the party complaining. But since the granting of

such an injunction to a party who fails or would fail to

establish his right at the trial may cause great injustice or

irreparable harm to the party against whom it was granted or

alternatively not granting of it to a party who succeeds or

would succeed may equally cause great injustice or

irreparable harm, courts have evolved certain guidelines.

Generally stated these guidelines are:

(1) The Plaintiff has a strong case for trial. That is, it

shall be of a higher standard than a prima facie case that

is normally required for a prohibitory injunction.

(2) It is necessary to prevent irreparable or serious injury

which normally cannot be compensated in terms of money.

(3) The balance of convenience is in favour of the one

seeking such relief.

17. Being essentially an equitable relief the grant of

refusal of an interlocutory mandatory injunction shall

ultimately rest in the sound judicial discretion of the Court

to be exercised in the light of the facts and circumstances in

each case. Though the above guidelines are neither

exhaustive nor complete or absolute rules, and there may be

exceptional circumstances needing action, applying them as

prerequisite for the grant or refusal of such injunctions

would be a sound exercise of a judicial discretion.”

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13. The Samir Bhojwani Court said that this principle has been

consistently followed. It also reiterated that a mandatory injunction is

not a remedy easily to be granted. It is given only in circumstances

which are clear, and the prima facie material clearly justifies a finding

that the status quo has been altered by one of the parties to the

litigation and the interest of justice demand that the status quo ante

be restored by way of a mandatory interim injunction. To gain a

mandatory interim injunction, the claimant must make out not just a

prima facie case but an exceptionally strong one.

14. Mr Ajatshatru, therefore, has before him a formidable task. At

the very least, he must satisfy the fundamental and more basic test for

the grant of any injunction or any interim relief. If the order he seeks

is to be read as a mandatory injunction or direction, then the bar that

he has set for himself is even higher and even more rigorous. That is

not a relief he will readily be granted. He must be able to establish an

overwhelming prima facie case that admits of not the slightest

ambiguity; and, moreover, must establish that there existed such a

status quo as satisfied the Plaintiff but that the Defendant has

somehow altered it and his request must be read for a restoration or a

rollback to that status quo ante.

15. Taking the last point first, I have not understood this to be Mr

Ajatshatru’s case at all, as we shall shortly see. To put it very briefly:

the struggle is about being credited as a co-producer of Sindhustan

along with Bhavnani. The facts prima facie show that credit as the

producer has been given to an entity called Akbar Pains (an anagram

of Sapna and Kabir, the two parties’ first names done in happier

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quo ante on the date the suit was instituted. Nobody, therefore, claims

that the status quo ante included Chowdhry’s name as a producer.

What the prayers in the Interim Application, therefore, seek cannot

possibly be a restoration of any status quo ante. They ask for a

dramatic change or alteration to that status quo.

16. Very late in the arguments, in fact towards the closing of

arguments, I specifically asked Mr Ajatshatru if his instructions were

to say that his client would rest content with an order that the

producer of the film would be shown as Akbar Pains alone. On

instructions, Mr Ajatshatru said that he could not make that

statement and that Chowdhry did press for his relief to be shown as a

producer of Sindhustan along with Bhavnani or along with Akbar

Pains or all three together. Chowdhry is not concerned, Mr

Ajatshatru says, with how Bhavnani chooses to describe herself. He

maintains and insists that he has joint copyright in Sindhustan along

with Bhavnani and must, therefore, receive credit as a co-producer

along with her.

17. What this tells us straight away is that the Interim Application

automatically fails the Samir Bhojwani test required for the grant of a

mandatory injunction. This failure is, of course, at one level. I will

assess it more fully, and in the rest of this judgment, I propose to

assess whether Chowdhry has made out any sort of prima facie case

at all. If he has not, then there is no question of his being able to make

out a very strong, exceptional, or overwhelming prima facie case. If

he cannot make out a prima facie case, then there is also no question

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or irreparable injury or prejudice. Everything, therefore, will turn on

this assessment of the facts.

18. This is so far as the general principles on the grant of

interlocutory relief is concerned. The second aspect of law is about

the legal entitlement under the Copyright Act, 1957. The context is a

cinematograph film. This requires us to consider some provisions of

the Copyright Act. Section 17 tells us that subject to the provisions of

the Act ‘the author’ of a work shall be ‘the first owner’ of the

copyright therein. Sub-clause (b) of the proviso to Section 17 says that

where a cinematograph film has been made for valuable consideration

at the instance of any person, that person shall, absent any agreement

to the contrary, be the first owner of copyright. Necessarily, this

requires us to look at the definition of the word ‘author’ in the

Copyright Act. We find this definition in Section 2(d). In relation to

a cinematograph film or sound recording, ‘the author’ is the

‘producer’. This takes us, in turn, to the definition of ‘producer’. We

find this in Section 2(uu). An amendment incorporating that

definition came by an Act of 1994 with effect from 10th May 1995.

Under the amended definition, a ‘producer’ in relation to a

cinematograph film or sound recording means a person who ‘takes the

initiative and responsibility for making the work. There is no dispute

about the definition of cinematograph film, and I will, therefore, not

trouble with that. For completeness, I note that the definition in

Section 2(y) of ‘work’ includes a cinematograph film.

19. Section 13 tells us that copyright subsists inter alia in

cinematograph films. Section 14(1) deals with the exclusivity that

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It empowers the holder of copyright to do or to authorise the doing of

various acts in respect of a “work” or any substantial part thereof.

For a cinematograph film, this right extends to making a copy of the

film, including a photograph of any image that is part of the film;

storing the film in any medium by electronic or other means; selling

or renting or offering for sale or rent any copy of the film; selling or

hiring out or offering to do so in respect of any copy of the film

regardless of whether such copy has been earlier sold or hired; and

the right to communicate the film to the public.

20. There is one more definition, to which Mr Ajatshatru turned

very late in his rejoinder, and that is the definition in Section 2(z) of

‘a work of joint authorship’. This is defined to mean a work ‘produced

by the collaboration of two or more authors in which the contribution of one

author is not distinct from the contribution of the other author or authors’.

21. An analysis of these statutory provisions suggests the following

in the context of a cinematograph film:

(i) the author is the first owner of the copyright;

(ii) the author means the producer (and no one else); and

(iii) the producer is he or she who has taken the initiative and

responsibility for making the work.

22. The argument of joint authorship in Section 2(z) consequently

is a reference to more than one person who all ‘took the initiative and

responsibility’ for making the work. These would be co-producers

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reason this is relevant will become apparent a little later in this

judgment.

23. What this demands of Mr Ajatshatru is that he must now

demonstrate that Chowdhry’s participation in the making of

Sindhustan was one of (i) taking the initiative and (ii) responsibility

for the making of the work.

24. These expressions ‘taking the initiative’ and ‘responsibility’

were directly in question before this Court in the case of Ramesh Sippy

v Shaan Ranjeet Uttamsingh & Ors

3

decided on 1st April 2013. This

was the case that involved the legendary film Sholay. The plaintiff,

Ramesh Sippy, was the director of this landmark film, a watershed in

the history of Indian cinema. He brought suit claiming to be the

author and first owner of copyright and also claiming an author’s

special rights in Sholay (and for other films as well). Incidentally, Mr

Ajatshatru appeared on the other side. The learned Single Judge

specifically considered what was meant by the definition of producer

and author under the Copyright Act. Leaving aside the discussion on

whether a partnership firm could be the owner of the copyright, the

learned Single Judge held clearly that for a cinema film, the author is

the owner of the film at the time of its completion; that under the

amended statute, the producer of a cinema film is its author and this is

the person who takes initiative and responsibility. The learned Single

Judge (SJ Kathawalla J) noted the submission before him in paragraph

25 in the following words:

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“25. Dr. Tulzapurkar further submitted that even if the

amended definition is considered, the producer of a

cinematograph film is the author of the cinematograph film

and the producer is defined as the person who takes the

initiative and responsibility for making the work. The two

words are initiative and responsibility. It means it is the

person who proposes to make a cinematograph film and who

has the responsibility of making the film i.e. who undertakes

the financial burden. The author of a cinematograph film will

be the persons responsible for the arrangements, particularly

in the financial sense. In the case of a film produced by a

Partnership firm, the Partnership firm becomes the author,

in the sense that the Partners at the time who were the

owners of the film when the film was completed, become the

authors of the film. This is clear from the definition of the

term ‘author’ in relation to a cinematograph film, appearing

in the Act that was prevalent at the relevant time. Therefore,

considering the law as it stood, at the time when the film was

completed, the Partners of Sippy Films who were Partners

when the film was completed in August, 1975 were the

authors of the film and not any erstwhile Partner who had

ceased to be a Partner when the film was completed. The

definition of ‘author’ in the Act prevailing at the time when

the film was completed recognised only the owners of the

film when it was completed. Admittedly, the plaintiff, having

resigned as a Partner prior to the date of completion and

having relinquished all rights in the assets of the firm to the

Continuing Partners, was not the owner of the film at the

relevant time and therefore was and is not the author of the

film. It is submitted that once it is found that there are joint

authors of a cinematograph film, the question of joint

ownership must be approached in accordance with the law in

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25. I will have some cause to return to this judgment and

specifically to paragraph 28 of it at a later stage when I more fully

consider Mr Ajatshatru’s submission before me today, for I believe

they are more than fully answered by the submissions he advanced

before the Hon’ble Mr Justice SJ Kathawalla in Ramesh Sippy.

26. On considering the rival submissions, Kathawalla J held in

paragraph 39 that the amendment made no change to the concept of

authorship. The owner — and this was again a noting of Mr

Ajatshatru’s submission for the 3rd defendant in that case — is the

‘entrepreneur who has taken the risk of commercial failure’. It is he

who has always been the producer of the film in the history of Indian

cinema. The Court then went on to reiterate the settled position that

‘taking the initiative’ and ‘responsibility’ must be understood as the

taking of financial risk both specifically and generally. Paragraphs 41

and 42 of the judgment sum up the position thus:

“41. As submitted by the defendants, it is a well known

fact that a producer is a person who spends on the making

of the film, owns the film and the copyright therein and is

the author of the film. In order to prove that the plaintiff

was the maker of the film, he has to prove that he was

financially responsible for the making of the film. The

plaintiff has contended that he was the Director of the said

film Sholay and was, like all Directors, involved very

closely at every stage of the film, the finalising of the script,

the screenplay, finalising the star cast, the location for shoot,

getting the film shot at location, dubbing and editing after the

shooting was over. But all this would not make the plaintiff

the owner of the film. In fact, in the present case the

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that since the firm provided finance he entrusted the job of

distribution of the film to the said firm. Therefore, according

to him, the said firm only lent the money for making of the

said film Sholay. The plaintiff has also not produced his

Accounts and/or Income Tax Returns to show that he was

advanced any loan by the firm of that he has repaid any

amounts to the said firm which were financed to him as a loan

by the said firm in connection with making of the said film

Sholay. If that would have been so, the plaintiff would have

received proceeds/profits from the film Sholay after the firm

recovered its alleged loan/finance advanced to the plaintiff.

The plaintiff has nowhere alleged/asserted that he received

any profits from the commercial success of the film or

partook in the profits of the film after the firm recovered its

alleged loan/finance advanced to the plaintiff. In fact, it is

clear that the said firm cleared the film Sholay for exhibition

from the Censor Board and distributed the film and received

all the monies for such commercial exploitation of the film.

The plaintiff’s assertion of being the author/owner of the

film Sholay is further belied by the fact that it is not even the

plaintiff’s case that he has entered into any agreements with

the writers, lyricists, actors, music directors, etc. of the said

film. It the plaintiff’s assertion would be true, it is the

plaintiff who would have entered into the required

agreements with the writers, lyricists, actors, music

directors, technicians qua their appointments as well as

remuneration and would have produced at least copies of

such Agreements.

42. An owner is therefore a person who has spent

towards the production of the film and who has not

merely arranged for the funds but in fact has taken the

risk of commercial failure, i.e. one who will lose money if

the film flops and who will reap the fruit of commercial

success if the film is a hit. In the instant case, it is the said

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accordingly the cinematograph film became the property of

the said firm when the film was completed. Admittedly, the

plaintiff has resigned from the Partnership Firm much prior

to the completion of the film. The plaintiff has only directed

the film ‘Sholay’ and has received accolades as a Director of

the film ‘Sholay’. Since it was the Partnership Firm which

produced the film the name of late Mr. Vijay Sippy being a

Partner in the said firm was also acknowledged and credited

as Associate producer of the film. The plaintiff has therefore

miserably failed to show that he has spent any amount

whatsoever on the film Sholay by himself and/or by taking a

loan. The plaintiff therefore at no point of time was the

author and/or the owner of the said film Sholay.”

27. Ramesh Sippy went in appeal.

4

That appeal came before a

Division Bench of which I was a member, and which was headed by

the Hon’ble Mr Justice SJ Vazifdar, as he then was. The relevant

discussion is in paragraphs 4, 13 and 23. This read:

“4. The appellant claims to have been the individual

solely responsible for the creation of Sholay, in every sense

of that term except for its financing. With a claim so

emphatically mounted, one would reasonably expect to find

some unequivocal supporting documentary material and, at

the very least, a consistent pattern of conduct by the

appellant to show that he held to this claim over the past

several decades since Sholay’s release in 1975. We find

instead not only a complete absence of any cogent

documentation favouring the appellant but also a

conspicuous want of action by the appellant in defending his

claims when others asserted the very rights that the appellant

now contends always belonged exclusively to him. Other

entities dealt with the rights in Sholay. They executed

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assignments and granted licenses. They launched litigations

to defend those rights. In all of this, they acted as the owners

of rights, especially the copyright, in Sholay. Much of this

was in the public domain in the form of public notices and

news reports. The appellant could not have been unaware of

these actions. Yet he stood by. In one case, he supposedly

even supported the actions of others who claimed these

rights in Sholay. On a considered scrutiny of the factual

material before us, and as the following discussion shows, it

is not possible to hold that the appellant has made out a

prima-facie case that he had rights in Sholay capable of

enforcement today. We have been unable to find any valid

ground for interference with the impugned order. As the

appellant has failed to make out a case on merits that he is

the owner of the copyright in Sholay, it is unnecessary for us

to deal with the issues of law raised by both sides, especially

at the ad-interim stage.

13. The appellant’s case is that while the partnership

firm may have provided the finance for the film, he and

he alone was the author of Sholay, for it was he who took

the initiative and responsibility for its making. This is the

factual foundation of the appellant’s claim, and it is on this

basis that he claims that the copyright in the film vested in

him. The fact that the partnership firm or G.P. Sippy are

credited as producers of the film is, the appellant submits,

irrelevant as there are irreconcilable discrepancies in the

naming of the producer: in the censor certificate, the

partnership firm is credited as the producer, while in the

publicity materials it is G.P. Sippy. Equally irrelevant,

according to the appellant, is the fact of his resignation from

the partnership firm before its general public release in India.

The film was otherwise complete and he had both copyright

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after the film was released under Section 13(2)(i) of that Act,

and an Author’s Special Rights under Section 27.

23. The learned Single Judge found, as a matter of law,

that it is permissible in law for a juristic entity such as the

firm or company to be the owner of copyright, and further,

that the law does not demand that the author of a film must

necessarily be a natural person. We do not think that it is

necessary to decide this issue finally at this stage. The view

expressed by the learned Single Judge is admittedly a prima

facie view at an ad-interim stage. This appeal is preferred

from an ad-interim order. At this stage, we are only required

to see whether the appellant has made out a prima facie case,

whether the balance of convenience favours him and

whether irretrievable harm and prejudice is likely to be

caused to the appellant if reliefs are denied. These are the

usual determinants for the grant of any interim or ad-interim

order. In appeal, a further consideration is whether it can be

said that the view of the Court below was so thoroughly

improbably or implausible as to warrant interference in

appeal. On a careful scrutiny of the material before us, we do

not think so.”

(Emphasis added)

28. But what will also be relevant for our purposes is a somewhat

parallel factual scenario that we noted in paragraphs 18 and 19, viz.,

that the claimant stood by while the other side asserted rights under

the Copyright Act.

29. What this tells us is that Chowdhry must establish, as a matter

of fact, and, more importantly, with sufficient lack of ambiguity to

satisfy the prima facie test (at any level), that he was the one who

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now means taking the financial risk. This is the only way in which he

can lay a claim to being a co-producer and sustain the interim

application for such reliefs. It is not enough, therefore, to show that

he did some other work such as editing, re-shooting, providing

creative input or directing. None of this will give him rights as an

author or as a joint author of copyright. I say this because I am

rejecting at the threshold as inconsistent with law Mr Ajatshatru’s

argument taken very latterly that because Chowdhry did various

other work on Sindhustan (and about which there does not seem to be

very much dispute, including editing and re-editing, some re-

shooting, some creative directing and so on), and was not

remunerated for this, this will on its own elevate him to the status of

a producer.

30. As to the financial question, Mr Ajatshatru’s submission is that

he forsook remuneration for his other work (editing, shooting etc.),

and this is, therefore, sufficient to satisfy the test of responsibility. I

can only say that the submission is far from compelling. There may

have been, as Mr Cama submits, other forms of recompense, and it is

not possible to find any one-to-one correspondence between doing

work without remuneration and becoming a producer. Mr Ajatshatru

may be correct in saying that there is no statutory requirement that

there must be a written contract for co-production and, therefore,

joint authorship. But that will make no difference, and the absence of

a statutory requirement will not make up for the lack of proof, even

prima facie.

31. If Mr Ajatshatru’s submission is to be accepted, it would be

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even dangerous. Every technician of a film, if not paid or if not

sufficiently paid, could then claim to be a joint author. Mr

Ajatshatru’s reliance on the ruling by the Hon’ble Mr Justice Krishna

Iyer in Indian Performing Rights Society v Eastern India Motion Pictures

5

to the effect that a cinema film is an ensemble of several participants,

all being brought together. But the judgment does not say that every

person who renders some component element becomes a producer

or can be said to be the person who took the initiative and

responsibility for making the work.

32. The same reasoning will hold for Mr Ajatshatru’s submission

that Chowdhry ‘took the initiative’ by advising Bhavnani what she

could do to improve or better the Sindhustan film as it stood before

his involvement. I do not believe that is the correct interpretation and

I dare say it would do considerable violence to the language.

33. My task, therefore, is to assess prima facie whether Mr

Ajatshatru’s client has been able to satisfy any of these requirements.

If he has not, then, evidently, the interim application will have to be

dismissed. If there is even a semblance of a prima facie case made out

— that is to say, that Chowdhry is able to show that he did take the

initiative and responsibility for Sindhustan — Chowdhry’s and Mr

Ajatshatru’s labours are far from done. For they must then establish

that what they have constitutes a sufficient prima facie case; and if I

am right in my reading of the prayers as required in the mandatory

order, they must show that these facts constitute an especially strong

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or overwhelming prima facie case that seeks to restore some status

quo ante that existed on the date of institution of the suit.

34. This takes us to the final legal question or principle to which

Mr Ajatshatru must address himself and of which he must be

mindful. The principle is that while hearing an interlocutory

application, no matter how complex and no matter how weighty the

record, the interlocutory Court is not to engage in a mini-trial. This

is a statement often made but far less frequently explained. I have

understood this to mean that I am not required to examine each

document with the minute scrutiny that might be expected of a trial

Court. In a civil trial, that level of detailed scrutiny of every single

document may not be required even at the final hearing of the suit. It

is certainly not required at the interim stage. What is to be seen,

consistent with the requirement of making out a prima facie case, is

whether the material adduced by the plaintiff is, taken as a whole,

sufficient to warrant or justify a finding that a Plaintiff seeking any

form of interlocutory relief has made out a prima facie case.

Resumed on 11th February 2021:

35. With this jurisprudential background, I turn now to the factual

material at hand. I have dealt with this material by class of document

or material rather than every individual document taken

chronologically.

36. The facts in themselves are not seriously in dispute. There are,

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Chowdhry’s and Bhavnani’s personal relations. Both sides have

shown admirable restraint in this regard. The second narrative is

about the work on Sindhustan. Inevitably, the two overlap.

37. To introduce the participants, Chowdhry lives in Chandigarh.

He is a filmmaker. He has several films to his credit, but perhaps the

most notable of these is one called Mehsampur, the subject matter of

the second suit. That was an April 2018 release. Chowdhry also has

(or had) his own production house called Dark Matter Pictures, in

partnership with one Akshay Singh.

38. Bhavnani lives in Bandra in Mumbai where she also works as

what is known today as a hairstylist. She had her own salon in the days

before the pandemic. This has or had a name that was decidedly less

astrophysical than the Chowdhry’s outfit. Bhavnani’s was called

Mad-O-Wat. Bhavnani’s work put her in touch with a number of

celebrities from the film and media world in Mumbai. She was on

good terms with many of them. Nobody denies that Bhavnani began

making Sindhustan as a documentary many years earlier. She says she

saw it as a personal commitment. It is at one level, perhaps at its most

essential level, a journey towards her own roots in the Sindhi

community and in the now-Partitioned land of the Sindh. Bhavnani

did not get permission to visit the Sindh, now in Pakistan. She

collected stories from the Sindhi community and material relating to

Sindhi culture. Remarkably, she seems to have had these stories

actually tattooed on her own legs and body as a sort of permanent

reminder — perhaps of the anguish of the Sindhi community, its

undoubted diaspora at Partition, its history and its deep connection

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sobering, and uplifting, all at once. The Sindhi community has deep

roots in many cities and places in India; and Mumbai is fortunate to

be one of them. In this Court alone, the presence and contribution of

the Sindhi community ranks among the most determinative, and our

city’s own history, especially since 1947, is replete with the quiet, yet

immense, contributions of this particular community, from education

to health-care, art and beyond. I say this because of the nature of the

work: it is a documentary, not a work of fiction. The documentary

apparently narrates those very stories that are etched into Bhavnani’s

corporeal being. Chowdhry does not deny the level of commitment

or Bhavnani’s passion, nor the fact that Bhavnani commenced this

project many years ago.

39. What Chowdhry does say, however, is that no matter how deep

or abiding that passion, it did not translate terribly well into a

cinematic experience. The two seem to have met in Chandigarh

sometime in late 2018 when Bhavnani was on her way to Shimla.

Bhavnani seems to have asked for Chowdhry’s help in improving

what she had already got — a working version of Sindhustan, what I

will now call Version 1.0.

40. Bhavnani and Chowdhry developed a bond that grew into a

relationship. Chowdhry seems to have done some more work on

Sindhustan, yielding another version, yet sub-optimal, and which I

will call Version 2.0.

41. Between September and roughly November 2018, Chowdhry

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unsatisfactory. At this stage, Chowdhry was being asked only to re-

edit the existing material. From November or December 2018,

onwards Chowdhry was in Mumbai. By now, he and Bhavnani were

in a more intimate and committed relationship. They stayed together

in Bhavnani’s home in Mumbai.

42. It is at this stage that additional work was done on what was to

become Version 3 of Sindhustan. This was a re-edited of the initial

film. According to Chowdhry, he also re-shot parts of the film.

Bhavnani asked him what could be done to improve the film. The re-

shoot was one suggestion. There was also further editing. Chowdhry

claims that he also directed some part of it, and I will take this to mean

that he directed that portion that was being re-shot (it could be

nothing else). He also provided, so he says, creative input. All this

resulted, Chowdhry claims, in a finished product — the third version

of Sindhustan, Version 3.0.

43. It is in this third version, arrived at by this process, that

Chowdhry claims rights. Mr Ajatshatru fairly accepts that Chowdhry

claims no rights in Version 1.0, assuming that it can be distinguished,

nor in Version 2.0, but his claim lies in the final cut that is Version

3.0. This is conceptually problematic because Versions 1.0 and 2.0 do

not exist as separate works. They are incorporated and meshed into

Version 3.0. In any case, this version was ready by about February

2019.

44. At this stage, a number of events began to happen in quite rapid

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Sindhustan to a festival or event called DocEdge, Kolkata apparently

intended to mentor documentary filmmakers. Sindhustan won an

award at this event. Bhavnani then began sending the film around to

various international film festivals, including New York, Atlanta,

Ottawa, Stuttgart and so on. There is material to show that at many

of the international festivals, the two travelled together. Their

personal relationship continued at least until September 2019. Then

they began to have differences. By December 2019, matters reached

a head. They broke off their relationship. They have not been

together since.

45. What Chowdhry claims, broadly stated, is that it is only after

two separated that Bhavnani started claiming to be the producer of,

first, his documentary film Mehsampur and for which he has filed a

separate suit. There was some correspondence in regard to the

Mehsampur claim and contentions in May 2020. By this time, of

course, the world was in a lockdown. In early-May 2020, Chowdhry

claims he discovered that Bhavnani was trying to commercialise

Sindhustan to his exclusion and issued her a cease and desist notice

requiring her not to exploit the copyright and claiming that he had

joint copyright in Sindhustan. Chowdhry claims that Bhavnani

wrongly denied his contribution and then says that she began

removing his name from various media and social media platforms.

Chowdhry also sent notices to the other Defendants, all of which are

or are connected with online platforms, demanding that they not

release Sindhustan on their services. The platforms did not comply.

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46. Leaving aside the dispute about Mehsampur, what is it that

Chowdhry claims in regard to Sindhustan? His case is simply is that

because of the work he did on Sindhustan (and this is now a reference

to Version 3.0, the final cut), he is the ‘joint author’ of that ‘work’

and is, therefore, entitled jointly to exploit the copyright. Of

necessity, this means, on any reading of the analysis of the Copyright

Act that I have set out above, that Chowdhry’s claim is to being a co-

producer of Sindhustan; therefore, his legal entitlement to jointly

exploit the copyright; and, concomitantly, his right to a restraint

against Bhavnani from exploiting the copyright in Sindhustan without

Chowdhry’s permission or consent. This is actually the totality of his

case.

47. Specifically, Chowdhry says that the work he did in December

2018/January 2019 of re-shooting, editing and providing creative

input was without recompense. It was not intended to be done

gratuitously. There may not have been a written contract, but the

version that was finally produced took that form only because of

Chowdhry’s invaluable contributions and inputs in very many

capacities: editor, cameraman, creative director, and perhaps more.

These taken together and reckoned with the absence of any

compensation being paid to him necessarily mean that he is a co-

producer of the film.

48. This is Mr Ajatshatru’s construct, and it depends on two

distinct but connected aspects. The first, in law, is that this

necessarily means that Chowdhry’s claim is that he ‘took the

initiative’ and ‘responsibility’ for the final cut of Sindhustan. In the

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initiative, Mr Ajatshatru would have it that by telling or advising

Bhavnani on how she could improve her initial raw work, he satisfies

that test. So far as the responsibility aspect is concerned, and

accepting the Ramesh Sippy standard, he says that the work that he

did — which Mr Ajatshatru describes as ‘sweat equity’ — may not

have received an immediate rupee compensation, but this only means

that his recompense must come in the form of recognition of his

rights of joint ownership of copyright. Otherwise, Mr Ajatshatru

submits, his creative work is all for nothing with no form of

recompense and no recognition of his labours.

49. Mr Cama has dealt with this argument at different levels, but

there is one that I want to reject immediately. I understood him to say

that since Bhavnani shared her home with Chowdhry while they were

together in Mumbai, Chowdhry was given ‘free boarding and

lodging’. I do not believe the experience was that of a hotel owner and

a guest to admit of such a description. When two parties are in a

relationship, one does not count pennies or keep accounts. It is not

possible to accept this is a ‘form of recompense’. There may be other

factors to be looked at, but this not one of them.

50. Mr Ajatshatru’s construct on facts, therefore, given this legal

background, is divided into distinct parts. Factually, at some point,

Chowdhry seems to have decided to wind up his own partnership

firm and separate from his partner Akshay Singh. There is also no

dispute that in early-March 2019, the parties agreed on a new label

called Akbar Pains. This was coined by Chowdhry as an anagram of

their first names Kabir and Sapna, as Chowdhry claims. That it is a

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seem to have had a formal legal structure. This becomes relevant

because, as we shall shortly see, it is this Akbar Pains that has been

credited in the title of Sindhustan as a producer, in some cases alone

and in some cases with Bhavnani’s name. At no point has

Chowdhry’s name appeared in the titles with or without Akbar Pains.

51. According to Mr Ajatshatru, there was between the parties an

agreement regarding Sindhustan. This may not have been a contract

in writing. It is nonetheless an understanding or an oral agreement

and one that is very much enforceable. In his plaint, Chowdhry claims

that as much as 60% of the finished film has the new material shot by

Chowdhry under his direction. He also supervised most of the post-

production work. In paragraphs 14 to 17, he says he took no fee for the

work of filming, editing and direction but remained involved right

through to the completion of the final product. This, he says, resulted

in an executed contract of around February 2019 — he cannot be

more precise than this — between the parties. Chowdhry performed

all his obligations under this contract. The consideration for that

contract and for the work done was co-ownership or joint ownership

of the copyright in the finished work.

52. Not only is this, Mr Ajatshatru says, factually provable, but the

law itself recognises Chowdhry’s rights. He has ‘taken the initiative’

(in the manner described above). It was he who provided the creative

input and helped shape the final product. His responsibility is

certainly financial and economic in not taking his fee upfront or

immediately. Mr Ajatshatru submits that of necessity, he is unable at

this stage to show any documentary proof of the revenue share from

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joint ownership of copyright was the consideration and was the

agreement between the parties. The full conspectus of copyright,

including moral rights, is vested jointly in Chowdhry and Bhavnani.

They take as tenants-in-common. Neither can exploit to the exclusion

of the other. In furtherance of this, Mr Ajatshatru says that the

original proposal was to release the film jointly by the two

independent enterprises, Dark Matter Pictures and Mad-O-Wat.

This, for a variety of other reasons, did not come to pass.

53. Mr Ajatshatru now turns to the material to establish two things:

first, that such a contract existed with this consideration; and,

second, to show that Bhavnani herself acknowledged in place after

place Chowdhry was indeed not just the co-producer but the

producer of this film. I turn to this material now. As I said earlier, I

am not conducting a mini-trial. I am looking at this material in its

broadest sense.

54. One incident on which Mr Ajatshatru relies is that when

Bhavnani submitted the film to DocEdge, Kolkata, Chowdhry’s name

was shown as ‘producer and creative director’ in the informational

material that is on record. He relies on Bhavnani’s emails to the

organisers of Doc Edge. Then there is material in the nature of

Bhavnani’s posts on her social media accounts around mid-February

2019 when the first publicity designs were created for Sindhustan.

Chowdhry says that here again, Bhavnani announced the film as a co-

production between the two parties’ respective houses. At about this

time, in early-March 2019, as I noted, Akbar Pains came into

existence. Bhavnani ran up a separate Facebook page and said it was

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had its own web page. This web page, one that Chowdhry says was

managed and run by Bhavnani, specifically acknowledged Chowdhry

as a producer in conjunction with the Akbar Pain’s name. An update

of about 24th April 2019 shows Chowdhry’s name. The reason the

film credits did not include either parties’ names is, Mr Ajatshatru

says, because they proposed to run it under the producership of

Akbar Pains, which in turn was agreed would be jointly controlled by

both of them.

55. It is for this reason that until September 2019, all credits in the

film, i.e. in the opening or end credits only showed Akbar Pains as the

producer. If Bhavnani has added her name in the credit rolls, this is

without Chowdhry’s consent or knowledge. She did this only after

she and Chowdhry broke off their relationship.

56. Then there is the material relating to film festivals. There is a

long list of these, about 13 or 20 in all. Many of these were overseas.

There were two in America (New York and Atlanta) in May 2019.

Chowdhry’s case that when the parties travelled, Chowdhry’s name

was included as a producer in all the documentation for the festival,

although it may not have been there in the credit titles (where only

Akbar Pains was shown). At all these festivals, both Chowdhry and

Bhavnani were co-producers, and Bhavnani always acknowledged

Chowdhry as the producer/editor of the film.

57. The material on which Mr Ajatshatru relies varies a great deal.

It is there in some background email correspondence. It is perhaps

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enthusiastically invited me to view some of this audiovisual material.

I, with a corresponding lack of enthusiasm, declined the invitation.

To return to this narrative, Mr Ajatshatru points out that the official

website of the June 2019 Ontario Indian Film Festival acknowledged

Chowdhry as a producer along with Bhavnani. For the July 2019

festival in Stuttgart, Germany, Bhavnani herself prepared a video

invitation in which she acknowledged Chowdhry as a producer. That

credit is also on the festival website. In an interview after the first

screening, Bhavnani is supposed to have acknowledged Chowdhry’s

contribution to the film.

58. By September 2019, relations had already soured between the

parties. They were then in Chicago. There is a video of that festival.

Chowdhry claims that he was felicitated as a producer when

introduced and called on stage.

59. Back in Mumbai in October 2019, at the MAMI festival,

Bhavnani acknowledged Chowdhry as the producer while submitting

Sindhustan as an entry into that festival. It is Bhavnani who supplied,

Chowdhry says, the credit details to MAMI for the official entry. The

email chain shows this, and it was Chowdhry who wrote back to

MAMI surrendering his seat at the event.

60. There are joint interviews as well, one of them of 21st August

2019, in which Bhavnani is said to have acknowledged and admitted

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61. See this in its entirety, Mr Ajatshatru urges; all this is the

conduct not of Chowdhry, but of Bhavnani. If she has not once or

twice, and not in a stray incident but repeatedly acknowledged

Chowdhry as the producer or co-producer of Sindhustan, then there

is no reason at all for relief to be denied. This is, taken as a whole and

without the minute scrutiny required in a trial, furnishes a more than

sufficient prima facie case is Mr Ajatshatru’s submission.

62. Before I turn to Mr Cama’s response to this, it seems to me

that there is one significant, and possibly determinative, lacuna in this

construct. Throughout, Mr Ajatshatru and Chowdhry rely on things

they say Bhavnani did, said or wrote to establish Chowdhry’s case.

What none of this answers is what Chowdhry himself did — or more

accurately did not do — in substantiation of the case he makes today.

For this much is clearly beyond doubt: that it was Chowdhry himself

who prepared the credits for Sindhustan, and in these credits he

described only Akbar Pains as the producer. He did not credit himself.

He did not credit himself and Bhavnani. He did not say that Akbar

Pains was a joint venture of Chowdhry and Bhavnani. What Akbar

Pains was and is conceivably is a crucial matter, for there is no prayer

in this suit for specific performance of any contract in regard to Akbar

Pains at all. I have not understood Mr Ajatshatru at any point to claim

any rights in Akbar Pains as an entity. His entire case has been and

only been that Chowdhry personally needs to be credited as a co-

producer. Whether he is shown as a co-producer with Akbar Pains or

with Akbar Pains and Bhavnani or only with Bhavnani is immaterial;

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63. Chowdhry himself agrees that Akbar Pains was at best an

unregistered trade mark, but more likely in the nature of a banner. He

claims that it was agreed to be utilised by both. There is some

controversy about a Chartered Accountant being engaged to draw up

the necessary documents, but this is very seriously disputed because

Mr Cama points out that the engagement of a Chartered Accountant

had nothing to do with Akbar Pains but had to do only with a

dissolution of Dark Matter Pictures. That is not an issue, therefore,

that lends itself to an ad-interim prima facie determination. There is,

however, material to show that Akbar Pains is a sole proprietorship of

Bhavnani. To say, therefore, as Chowdhry does, that it is merely a

brand name and that no copyright can vest in a label is incorrect.

There are allegations at various places that Bhavnani has

‘fraudulently’ obtained a Shops and Establishment Act license from

the MCGM in the name of Akbar Pains with her as a proprietor. The

submission is that the legal status of Akbar Pains is inconsequential.

Akbar Pains did not even exist when the film was completed and

when copyright came to vest. Even if Akbar Pains is now shown as a

producer there would have to be an assignment of copyright by a

written contract between the original holders of the copyright and

Chowdhry not having executed any such contract, there is no right

that vests in Akbar Pains.

64. Even on its own, this presentation is by no means compelling.

Instead of unequivocal evidence of a prima facie case, all that I have

is a circuitous, elliptical, inferential set of documents. I am asked to

infer that Chowdhry must have been the co-producer of the film. The

legal test itself is not satisfied, for, as I have noted, merely saying that

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Justice Krishna Iyer described as a glorious, collective ensemble does

not elevate every such contributor to the level of a producer, i.e. the

author and first owner of the copyright. As I have noted above, the

consequences of accepting this submission are unimaginabl. That is

not how the law is structured.

65. The second lacuna is the complete failure to demonstrate any

such co-producing agreement at all. Again, at this prima facie stage, I

am invited to infer it. I cannot. Whether or not it will be proved at trial

is another matter altogether. Today, the material before me shows no

such agreement.

66. But this is not all. There is a response from Bhavnani and this

takes on every one of the different classes of assertions that

Chowdhry makes and deals with them one by one. I will leave aside

for now the questions of delay and acquiescence and come directly to

the traverse on facts.

67. First, there is the fact that the credit rolls of the film, even

though they were created by Chowdhry himself, never showed him as

a producer. It was he who prepared these in his capacity as an editor.

Chowdhry is credited with various other roles for camera work, as an

editor, creative director and with ‘special thanks’, none of which have

been taken away.

68. There is countervailing material in the form of an email from

Chowdhry with a draft credit roll which was prior to Version 3.0, i.e.

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his role has changed since, but what this tells us is that at least until

November 2018, Chowdhry had no conceptualisation of his work or

proposed work on the film being that of a person who would ‘take

initiative’ and ‘responsibility’.

69. Another telling circumstance is that the film certification

application to the Central Board of Film Certification or CBFC was

by Bhavnani alone. It referenced only Akbar Pains. This was in

September 2019. The certificate came on 9th October 2019. It shows

Bhavnani’s name as the producer. Now the Ramesh Sippy judgment

in appeal and that of the learned Single Judge both accept this as

prima facie proof of ownership. Chowdhry could not have been

unaware of the requirement of film certification. Between January

2019 to May 2020, there is absolutely nothing from Chowdhry that

shows him asserting his rights as a producer. Indeed this is true

throughout, where Chowdhry’s entire case is based on what

Bhavnani is supposed to have said, without any reference whatsoever

to what Chowdhry himself did to assert the rights that he now claims.

70. This matter of looking at emails can go on endlessly. For every

one email on one side, there will be two on the other. Mr Cama

submits that there are equally emails from Chowdhry confirming that

he was only the editor of the film. My task today is not to assess every

one of these emails but to see if there is a prima facie case made out.

71. All invitations to the film festivals were addressed only to

Bhavnani. It is she alone who responded. It is she who paid for all

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enough countervailing material to show that the references were to

the film as being Bhavnani’s with Chowdhry shown only as the editor

— and all of this at festivals at which Chowdhry was very much

present.

72. When it comes to the correspondence in relation to the film

festivals, Bhavnani says that for the travel abroad, for some visa

purposes, Chowdhry needed to be shown as a ‘person of significance’

to get the necessary class of visa.

6

It is for this reason that he was

shown in that correspondence as a producer. This never translated to

any credit in the film itself. Mr Ajatshatru says that even assuming

this to be true, which it is not, it could not possibly apply to

subsequent visits. There were another 16 or 17 festivals at which there

is no mention of him as being a producer. Again, I am at some pains

to point out that I am looking at this material as a class to see whether,

taken in totality, it bears out what Chowdhry claims.

73. On the one hand, therefore, I have some documents that are

judicially recognised as important prima facie proof of ownership.

These include the CBFC certificate, the credit titles and other

registrations. There is also attendant material in the form of

invitations, awards etc. As against this, and I have looked very closely

for even one determinative document, all that I have from Chowdhry

are references on Facebook or other social media posts, some

6 There is one entry on a website that in April 2019 bore the name of the

Plaintiff as a producer but the explanation from Bhavnani is that this insertion

was needed for a US visa and as supporting material for that visa. Given that the

US trip was in May 2019, that is not an explanation so easily disregarded or

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statements in correspondence that are inconclusive when seen as a

whole. One must see the entirety of the evidence and in which

direction it tends; and whether it can be said to be freighted with the

conclusions Mr Ajatshatru invites. This inferential material is the

only material that Chowdhry has. It is by no means persuasive. I have

not the slightest intention of examining every one of these documents

at this stage. Repeatedly, I asked for a single document from

Chowdhry that satisfies even prima facie the legal determinants.

Other than the correspondence and social media material of this type,

I was shown nothing. Multiplying this will not give heft to an

otherwise vulnerable case.

74. The ownership of Akbar Pains is perhaps something of a red

herring. Chowdhry maintains it is irrelevant. I have considered that

above. The answer from Mr Cama is to say explicitly that Akbar Pains

is the proprietary concern of Bhavnani. He points out that Chowdhry

is constantly shifting goalposts when it comes to Akbar Pains. At one

place, he contends that it is a mere label, brand or shell. Then he

contends that it was intended to be an entity in which both he and

Bhavnani would have an equal stake. Then he claims that it continues

to be only a label and is not the proprietary concern of Bhavnani and

that she has obtained government licenses fraudulently. How this is

fraudulent remains unclear. But if Bhavnani is shown as the

proprietor of Akbar Pains for the purposes of the Indian Motion

Pictures Producers Association and this is material of which

Chowdhry was aware, then that is all that needs to be stated. The

Akbar Pains website is one that Bhavnani owns. She alone does all its

publicity. All documents relating to Akbar Pains stand in the name of

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75. There is some concern about the delay in bringing the suit. Mr

Ajatshatru says that it was brought as soon as possible and as soon as

he learnt of Bhavnani’s attempts to deal with the copyright

independently. I find that hard to accept. Chowdhry did the credits

for Sindhustan in January or February 2019. I do realise that he was

in a relationship with Bhavnani, and that may have more than

somewhat clouded his judgment, but that was the earliest time to

have asserted his right to be a co-producer either with Bhavnani or

anyone else. We find no such assertion. Indeed, in all of 2019, there

is no such assertion at all, although, by September 2019, relations

were already under stress, and by December 2019, they had been

irredeemably broken down. By this time, to Chowdhry’s knowledge,

the film had been screened in festival after festival across the world

where the credits and end titles were there for all to see. Not once did

Chowdhry’s name appear on that. He cannot now say, “I was Akbar

Pains or part of it, and part of Akbar Pains was me’. If he does say

that, he must seek relief for that — which he does not. There is no

such prayer whatsoever.

76. The first time Chowdhry asserts a right to being a co-producer

is in his legal notice of 1st May 2020 in relation to Mehsampur. A copy

of that is readily available at page 370 of the plaint.

7

The is addressed

to Bhavnani — care of Akbar Pains. In paragraphs 5 and 8, Chowdhry

referenced Akbar Pains as Bhavnani’s ‘production banner’, i.e. that

Akbar Pains was Bhavnani’s concern and that he had no role in it. It

is difficult to understand these vacillating stands from Chowdhry.

7 Not to be confused with the notice in regard to Sindhustan of 4th May

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Can it be fairly be said that these facts, even taken as a whole, make

out a sufficient prima facie case for the grant of relief?

77. I not only have the most serious reservations about this. I do

not see how I can legitimately say that there is any sort of prima facie

case made out, let alone the kind of strong prima facie case required

for a mandatory injunction assuming my reading of the prayers is

correct.

78. I do not think it is necessary to refer to the very many

judgments and authorities on which Mr Ajatshatru has relied and of

which I have a compilation. The written submissions on both sides

are as exhaustive as they are debilitating — and they are an invitation

to engage in precisely what I cannot do, conduct a mini-trial at this

stage. The references to authorities on joint ownership of copyright

are immaterial because, as I have noted, even a joint author must

satisfy the definition of an author, to begin with. In the case of a

cinematograph film, this means that it must be the producer, and the

producer must be somebody who is shown to have taken the initiative

and responsibility. Chowdhry’s contribution to the film is not denied.

There was his contribution as a camera person, as a creative director,

as an editor and one deserving of special thanks. But this does not in

and of itself translate into him being one who could be said to have

taken the initiative and responsibility for making the work. That

requires considerably more. In a given situation, there may be a

director who is also a producer in some capacity. This is well known

in the cinema industry both here and overseas, especially where the

directors are themselves prominent personalities and function in both

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matched with taking the initiative in conceptualising the work and

bringing it into existence, and also accompanied by the risk-taking

element of responsibility, then and only then does one become a co-

producer entitled to protection under the Copyright Act for the

purposes of a cinema film. Nothing short of this will do, and being a

producer cannot, in my prima facie view, be something that can be

asserted by inference or circular reasoning. The evidence of taking

the initiative and responsibility must be strong and must be direct. In

the absence of that, no relief is possible.

79. At the head of this judgment, I referenced the decision by

Kathawalla J in the Sholay case. I pointed to paragraph 28 of that

decision and said I would return to it. I do so now. And I do so because

it reflects Mr Ajatshatru’s submission before that Court as to why

Ramesh Sippy could not be considered a producer. I do not suggest

there is estoppel against counsel. But I do believe those very

arguments that Mr Ajatshatru then made must apply equally against

him today:

28. It is submitted on behalf of defendant No. 3 that it is

an admitted position that the plaintiff was the principal

Director of the film Sholay. Though the director of a film

is expected to be involved at every stage in the creation of

the film, he does not put in financial investment for the

making of the film but it is the producer who either

finances the film himself or arranges for the finance and

it is the producer who takes the sole risk of suffering

losses if the film is a flop. The director is paid his fee and

bears no liability whatsoever if the film is not commercially

successful. In the present case, the film Sholay was produced

by the said firm and it was the said firm which arranged for

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Much prior to the completion of the film in August, 1975, the

plaintiff realising the risk of failure, voluntarily retired from

the said firm on 12th June, 1975 and settled all accounts with

the said firm to mitigate any liability of losses which the

producer firm may have suffered if the film was not

successful at the box office. Thus, at the time of completion

of the film in August, 1975, the said firm was the sole

producer and the owner of the said film Sholay and

accordingly as per the provisions of the Act as it stood then,

was the ‘sole’ author of the cinematograph film Sholay. The

plaintiff may have been associated with the production and

completion of the film after 12th June, 1975 but only as its

Director and only doing all the jobs of the Director. The

Directorship of the film in question has brought tremendous

laurels to the plaintiff and he enjoys fame even till date.

However, the Directorship does not entitle him to claim

being the ‘author’ of the film and claim copyright and

moral rights in the film, either at the time of release of the

film or even today. It is submitted that there is nothing

brought on record by the plaintiff to prove that he was the

producer or owner of the said film Sholay at the time of

its completion in August, 1975 or to show that he

shouldered the risk of commercial failure if the film was

a flop or for that matter he enjoyed the profits from the

successful commercial exploitation of the film as the

producer of the said film Sholay. It is submitted that the

plaintiffs stand, on the role of a principal Director of a film in

relation to authorship of a film is a matter of record and the

defendant No. 3 has relied on “Department - Related

Parliamentary Standing Committee on Human Resources

Development on “The Copyright (Amendment) Bill, 2010”

(“Bill) that was tabled in the Lok Sabha on 27th November,

2010, proposing inter alia to amend the definition of the

‘author’ of a cinematograph film to include the Producer as

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delegation of the Film and Television Producers Guild of

India which vehemently opposed the proposed amendment

giving authorship to the principal director of a film. It is

submitted that the plaintiff is now taking a different stand

before this Court on Authorship in the film Sholay and is

therefore blowing hot and cold which cannot be permitted.

It is submitted that the plaintiff was and remains only to be

the Principal Director of the said film Sholay and nothing

more, and therefore cannot claim authorship in the said film

and consequently cannot claim any reliefs as prayed for in

the suit and the Notice of Motion.

(Emphasis added)

80. In my view, there is no substance to this Interim Application.

The Interim Application is dismissed.

81. Although this matter is in the Commercial Division and the

amendments to Section 35 the Code of Civil Procedure 1908 effected

by the Commercial Courts, Commercial Division and Commercial

Appellate Division of High Courts Act, 2015 generally require costs

to follow the event, I decline to make an order of costs in this matter.

This is because the two parties are individuals. I do not see any reason

to make orders of costs against them. There will be no order as to

costs.

82. All observations on facts are only prima facie for the purposes

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83. This order will be digitally signed by the Private Secretary of

this Court. All concerned will act on production of a digitally signed

copy of this order.

(G. S. PATEL, J) ::: Uploaded on - 15/03/2021 ::: Downloaded on - 30/08/2025 21:09:26 :::